023-SLLR-SLLR-1994-V2-HOPMAN-AND-OTHERS-V-MISITER-OF-LANDS-AND-LAND-DEVELOPMENT-AND-OTHERS.pdf
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[1994] 2 Sri LR.
HOPMAN AND OTHERS
v.
MINISTER OF LANDS AND LAND DEVELOPMENT AND OTHERS
SUPREME COURT.
G. P. S. DE SILVA. C.J.,
KULATUNGA, J. ANDRAMANATHAN, J.
S.C. APPEAL NO. 21/93.
CA. APPLICATION NO. 1777/79.
OCTOBER 06.1993.
Land Acquisition – Certiorari – Land Acquisition Act, ss. 2, 4, 5 and 38 proviso (a)- Undue Delay and Waiver – National Housing Act, ss. 49, 50 – Act, No. 18 of1972 and Act, No. 29 of 1974 – Interpretation Ordinance Section 24 – CourtsOrdinance s. 42 – Administration of Justice Law No. 44 of 1973, s. 12 -Constitution of 1978, Article 140.
The land in dispute was acquired on a certificate by the 2nd respondent (Ministerof Housing & Construction) under s. 49 of the National Housing Act, that it shouldbe acquired by the Government for carrying out a ‘housing object' by the 5th, 6thand 7th respondents. Under s. 2 of the Act 'a housing object* includesconstruction of buildings for residential purposes. The Acquiring Officer tookpossession of the land and vested it in the National Housing Department.Thereafter the 4th respondent (Commissioner for National Housing) gavepossession thereof to the 5th, 6th and 7th respondents presumably pending aformal disposition under s. 50 of the Act after receiving a payment ofRs. 168,000/-.
sc
Hopman and Others v.
Minister of Lands and Land Development and Others
241
The appellants impeached the validity of the acquisition on the following grounds:
The boundaries and extent of the land described in the notices under sections2 and 4 and the declaration under s. 5 of the Land Acquisition Act differ fromthose set out in the Acquisition Order – particularly the extent differs by 18.12. p.
The acquisition was not for a public purpose or for a housing society.
The acquisition is mala fide as it was done at the behest of the 5th respondentwho was a Cabinet Minister who was using his political power for himself and forthe 6th and 7th respondents who were his brother and brother-in-law respectively.
While denying these grounds the 5th, 6th and 7th respondents alleged that theappellants had sought an increase of compensation from the Board of Reviewand they were guilty of delay.
Held:
The appellant's appeal to the Board of Review for enhanced compensationcannot be regarded as conduct which precludes the relief sought by theappellants and their conduct did not amount to a waiver.
Under s. 49 of the National Housing Act the 5th, 6th and 7th respondentswould be eligible to receive land for a housing object in their individual capacity.The construction of buildings for residential purposes would be under s. 49‘deemed to be for a public purpose'.
There is no evidence of mala fides.
The allegation of delay in filing the writ application is not irrelevant.
Act, No. 18 of 1972 and Act, No. 29 of 1974 do not preclude the appellantsfrom challenging the impugned acquisition. Under s. 24 of the InterpretationOrdinance enacted by Act No. 18 of 1972 and amended by Act No. 29 of 1974the jurisdiction of the Court to grant an injunction or a stay order against the Stateor a Minister or a State Officer acting as such was removed, but by subsection 5of s. 24 the power of Court to make an order declaratory of the rights of partieswas not affected. The said Acts did not touch the power of the Supreme Court togrant writs under s. 42 of the Courts Ordinance (or later), under s. 12 of theAdministration of Justice Law No. 44 of 1973, except that by force of s. 24 of theInterpretation Ordinance the court may not have had the power to grant a stayorder restraining an acquisition. This power was regained after the writ jurisdictionbecame a remedy provided for under Article 140 of the 1978 Constitution.
The appellants were not by law precluded from challenging the acquisition.The excuse for delay based on the amendment to the Interpretation Ordinance is
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not tenable. The appellants have failed to give a satisfactory explanation for theirconduct and the delay in making their application to the Court of Appeal.
Cases referred to:
Biso Menike v. Cyril de Alwis [1982] 1 Sri LR 368, 379-380.
Billimoria v. Minister of Lands [1978-79-80] 1 Sri LR 10.
Appeal from judgment of Court of Appeal.
D. R. P. Gunatilaka with Raja Peiris for appellants.
H. L de Silva, P.C. with N. M. Musaferfor 5th, 6th and 7th respondents.
1st, 2nd, 3rd and 4th respondents absent and unrepresented.
Cur. adv. vult.
November 02, 1993.
KULATUNGA, J.
On 25.09.79 the appellants made an application to the Court ofAppeal for a writ of certiorari to quash an order made by the 1strespondent (The Minister of Lands & Land Development), under s. 38proviso (a) of the Land Acquisition Act and published in Gazette dated10.12.76, for the acquisition of a land in extent 1R.31.53P, in CastleStreet, Colombo 8. The Court of Appeal gave its judgment dismissingthe application on the ground of an objection taken by Counsel for the5th, 6th and 7th respondents that the appellants were guilty of unduedelay and other conduct amounting to a waiver of their right tochallenge the acquisition. This appeal is against that judgment.
The land in dispute appears to have been acquired on a certificateby the 2nd respondent (The Minister of Housing & Construction),under s. 49 of the National Housing Act (Cap. 401) that it should beacquired by the government for the purpose of being made availablefor the carrying out of a 'housing object" by the 5th, 6th and 7threspondents. Under s. 2 of the Act “a housing object” includes theconstruction of buildings for residential purposes. Accordingly, on07.02.77 the 3rd respondent (The Acquiring Officer) took possession ofthe said land and vested it in the National Housing Department.Thereafter, the 4th respondent (The Commissioner for NationalHousing) gave the possession thereof to the 5th, 6th and 7threspondents, presumably pending a formal disposition under s. 50 ofthe Act. Before possession of the land was given to the saidrespondents, the 4th respondent recovered a sum of Rs. 168,000/-from them.
Hopman and Others v.
SCMinister of Lands and Land Development and Others (Kutalunga, J.)243
The original owner of the said land was one Ebert who died in1970 whereupon it is said to have devolved on his sons, theappellants each of whom claims an undivided 1/3 share. In or about1963, proceedings had been commenced to acquire this land on therequest of the 5th respondents, but those proceedings had beenabandoned in 1965. It would appear that acquisition proceedingswere recommenced on 04.03.70 after which the land was acquiredand made available to the 5th, 6th and 7th respondents, as aforesaid.
The appellants impeached the validity of the acquisition on thefollowing grounds:
That the boundaries and extent of the land described in thenotices under sections 2 and 4 and the declaration under s. 5 ofthe Land Acquisition Act differ from those set out in theAcquisition Order; that in particular, the extent mentioned in theAcquisition Order exceeds the extent shown in the aforesaidnotices and the declaration, by 18.12P.
That the land has been acquired not for “a housing society"under the National Housing Act, but for the use of the 5th, 6thand 7th respondents, which is not a public purpose. There wasalso no urgency for the said acquisition and hence there is nopower to make an Order under S. 38 proviso (a) of the LandAcquisition Act.
That the acquisition is mala fide in that it was effected at thebehest of the 5th respondent who was a Cabinet Minister of thethen government who used his political power to acquire theland in dispute for himself, and for the 6th and 7th respondentswho are his brother and brother-in-law, respectively.
It is relevant to note that the acquisition proceedings wererecommenced on 04.03.70 prior to the change of government andthese proceedings were continued during the period of the nextgovernment and the application before the Court of Appeal was filedon 25.07.79 after the assumption of power by a new government. Ifthe acquisition was mala fide then, the Ministers who wereresponsible for such acquisition have not been made respondentspersonally for the 1st and 2nd respondents (being the relevantministers) have been joined “nominee officii". It is perhaps in thesecircumstances that objections to the application were filed only bythe 4th, 5th, 6th and 7th respondents, denying mala fides.
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In particular, the 5th, 6th and 7th respondents raised a legalobjection to the application on the ground that the petitioners whohad previously challenged the acquisition in application No, CA270/72 had withdrawn that application; that after the acquisition theyhad appealed to the Board of Review constituted under the LandAcquisition Act for enhancement of compensation; that thepetitioners had by such conduct waived the right to challenge theacquisition; and that their application is bad for undue delay.
At the hearing before us, the learned Counsel for the appellantsstrenuously contended that the impugned acquisition was not for "ahousing society" or for a public purpose but for the benefit of threeindividuals, namely the 5th, 6th and 7th respondents; that theacquisition is a sham and obviously mala fide in that it was influencedby the 5th respondent; that as such, the said acquisition is a nullity;and hence the delay is irrelevant. He also submitted that the fact thatthe appellants took the precaution of appealing to the Board ofReview for enhanced compensation does not constitute conductwhich disentitles them to the remedy of certiorari. Counsel cited insupport Biso Menike v. Cyril de AiwisAs regards the withdrawal ofthe C.A. Application No. 270/72, Counsel reiterated the explanationOffered by the appellants in their pleadings in the Court below and inthis Court that it was only an application for an injunction, pendingthe filing of an action. However, the contemplated action was not filedin view of the law existing at that time namely, the Interpretation(Amendment) Act No. 18 of 1972, and Act No. 29 of 1974 whichprecluded the appellants from challenging the acquisition.
Learned Counsel for the 5th, 6th and 7th respondents submittedthat the allegation of mala tides is based solely on the fact that the5th respondent was a Minister. It is a mere inference based upon thestatus of the 5th respondent; that there is no evidence that the twoMinisters who were responsible for the acquisition were in factinfluenced; and that the 1st and 2nd respondents have been sued intheir official name. Hence, individual Ministers who are alleged tohave acted mala fide have not been identified. He also submitted thatthe statutes referred to by the appellants did not preclude achallenge to the acquisition and the remedies available to theappellants included the right to relief by way of certiorari. Counsel •argued that in the circumstances the impugned acquisition is not anullity; and that the Court of Appeal has correctly dismissed theapplication on the ground of laches,
Hopman and Others v.
SCMinister of Lands and Land Development and Others (Kuiatunga, J.)245
I am of the view that the appellant's appeal to the Board of Reviewfor enhanced compensation cannot be regarded as conduct whichprecludes the relief sought by the appellants. The exercise of thatright cannot amount to a waiver of the right to challenge the Order ofAcquisition. We must, therefore, consider the issue of laches on thebasis of the other submissions made by Counsel. It would beconvenient to examine those submissions in the following order:
It seems to me that the submission that the acquisition was notfor ‘a housing society” is irrelevant. The reason for this view is thatwhilst Part III of the National Housing Act (Sections 10-30) providesfor the establishment of "building societies”, "housing bodies" and“building companies” for carrying out housing objects, individualsare also competent, with the assistance of the Commissioner forNational Housing, to carry out such objects. Thus S. 49 provides:
“Where the Minister certifies any land (other than State land)should be acquired by the government for the purpose of beingmade available for the carrying out of any housing object andsuch certificate is published in the Gazette, that purpose shallbe deemed to be a public purpose, and that land may beacquired under the Land Acquisition Act, and be madeavailable for that purpose to the Commissioner, or to any otherperson by being disposed of under the succeeding provisionsof this Act. ”
Under this section, the 5th, 6th and 7th respondents would be eligibleto receive land for a housing object in their individual capacity; and inthe absence of any material placed before us that the authoritiesprocessed their application as one made by an organization such asa "building society", I have to assume that their request for land wasmade as individuals. Presumably, the object of such request was theconstruction of buildings for residential purposes which under theabove section is “deemed to be a public purpose”.
In the circumstances, the objection to the acquisition of land forthe benefit of the 5th, 6th and 7th respondents, as well as thesubmission that the impugned acquisition was not for a publicpurpose fail.
I am in agreement with the submission of the learnedPresident's Counsel for the respondents that there is no evidence ofmala tides on the part of the relevant Ministers and that such
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allegation is based solely on the fact that the 5th respondent was aMinister. I am, therefore, unable to hold that the Acquisition Order is anullity. As such, Biso Menike's case {supra) has no application. It is tobe noted that in that case what was challenged was an order madefor the vesting of a house pursuant to an application by the tenant topurchase it under s.13 of the Ceiling on Housing Property Law No. 1of 1973. This Court held that the said tenant had no right under thelaw to purchase the house in question and hence the vesting orderby the Minister under s.17 was ultra vires and a nullity. In thesecircumstances, Sharvananda, C.J. (as he then was) held:
*the Court has ample power to condone delays, where
denial of writ to the petitioner is likely to cause great injustice.The Court may therefore in its discretion entertain theapplication in spite of the fact that the petitioner comes to Courtlate, especially where the order challenged is a nullity forabsolute want of jurisdiction in the authority making theorder" (emphasis is mine).
It follows that the submission of the learned Counsel for theappellants that the delay in filing the writ application “is relevant"must fail.
I am also of the view that the submission that Act No. 18 of 1972and Act No. 29 of 1974 precluded the appellants from challenging theimpugned acquisition is untenable. Under S. 24 of the InterpretationOrdinance enacted by Act No. 18 of 1972 and amended by Act No. 29of 1974, the jurisdiction of the Court to grant an injunction or a stayorder against the State or a Minister or a State Officer acting as suchwas removed. However, subsection 5 of S. 24 states:
"The preceding provisions of this section shall not be deemedto affect the power of any Court to make an order declaratory ofthe rights of parties"
The said Acts did not touch the power of the Supreme Court to grantwrits under s. 42 of the Courts Ordinance (Cap. 6) (or later) unders.12 of the Administration of Justice Law No. 44 of 1973, except thatby the force s. 24 of the Interpretation Ordinance the Supreme Court
Hopman and Others v.
SCMinister of Lands and Land Development and Others (Kulatunga, J.)247
(exercising its writ jurisdiction under ordinary Law) may not have hadthe power to grant a stay order restraining an acquisition. This powerwas regained after the writ jurisdiction (now exercised by the Court ofAppeal) became a remedy provided for under Article 140 of the 1978Constitution. From the time of the decision in Bifflmoria v. Minister ofLands w, such power has not been questioned and hence writjurisdiction of the Court regained its effectiveness to the fullest extent.
However, as indicated earlier, the appellants were not by lawprecluded from challenging the acquisition. They had the right tochallenge the acquisition by action in the Original Court or byseeking a writ in the Superior Court even though the relief availablehad become somewhat less effective, until 1978. As such, theexcuse for the delay based on the amendment to the InterpretationOrdinance is not tenable.
In the result, the appellants have failed to give a satisfactoryexplanation for their conduct and the delay in making theirapplication to the Court of Appeal and hence that Court cannot befaulted for exercising its discretion against the issue of the writ. I,therefore, dismiss this appeal and affirm the judgment of the Court ofAppeal, but without costs.
G. P. S. DE SILVA, C J. -1 agree.
RAMANATHAN, J. -1 agree.
Appeal dismissed.